Legal Alerts

Conversations Among Federal Lawmakers May Lead to New Water Legislation

A number of conversations are occurring in the U.S. House of Representatives, and between the House and the U.S. Senate (particularly Rep. David Valadao (R-Hanford, Calif.) and Sen. Dianne Feinstein (D.-Calif.)) to reintroduce a version of last year's drought legislation (H.R. 5781). The key short-term issue is providing flexibility under the Endangered Species Act, the biological opinions for the Delta Smelt and the winter run salmon. This flexibility would take the form of increased pumping at certain times of year. The two biological opinions, respectively on the smelt, from the U.S. Fish and Wildlife Service, and the salmon, from the National Marine Fisheries Service, were litigated, and the U.S. Supreme Court declined to take up the smelt case. The opinions are very prescriptive and severe about when pumping can occur from the Delta for conveyance to the South Bay, Central Coast, Central Valley and Southern California. A specific legislative solution amending the Endangered Species Act or directing how the Act would be applied in certain circumstances is likely to be extremely controversial and challenging to accomplish, so any bill will have to try to work through those constraints.The conversations also include Rep. Ken Calvert (R-Corona, Calif.), who wants to make sure that the stormwater flows can be integrated.

One of the difficulties with this new approach is that it targets only California, and does not address any issues that may be problematic for other Western states. Since California only has two senators, despite such a large population, any bill will be difficult in the Senate. A broader bill dealing with other Western issues would be more likely to succeed, since it could gain more support in the Senate. Therefore, other issues may be taken up in the context of this bill, or separately, including facilitating storage projects and expediting permitting processes.This may potentially encompass some of the provisions of the recently introduced “Water in the 21st Century Act—H.R 291,” although the funding would be problematic. Congress could provide some matching funds for state development programs. In fact, it could be that Congress will use this opportunity to develop drought legislation that applies to all Western states, including Texas.

All of these issues are being considered by the key players, including the new chairman of the House Natural Resources Committee, Rep. Rob Bishop (R-Utah), and the new chairman of the Senate Energy and Natural Resources Committee, Sen. Lisa Murkowski (R-Alaska). If a larger bill emerges, it could be an opportunity for municipalities and agencies to solve any number of problems, including funding, contracts, permitting and other legislative and regulatory matters.

BB&K’s Washington D.C. office is following these conversations closely and is available to answer any questions. For more information or to discuss any possible implications for your agency, please contact the author of this legal alert in the firm’s Government Relations Services practice group listed at the right, or your BB&K attorney.